Attorney General's Reference No. 3 of 1992 2 All ER 121

Mens rea of attempted arson - Recklessness


Four men (D) threw a petrol bomb from a moving car, which hit a wall nearby four men in a parked car and two standing men. D were charged with attempted aggravated arson with recklessness as to whether lives are endangered, under section 1(2) of the Criminal Damage Act 1971 (1971 Act). The trial judge acquitted D, finding that recklessness as to whether life would be endangered as a result of the intended damage was insufficient to convict D of attempt under the 1971 Act. The judge ruled that D must have intended to not only damage property but also to endanger life to be convicted of attempted aggravated arson, as an attempted crime could not be committed without intent. The Attorney General referred the case to the Court of Appeal.


The issue in question was whether intent to endanger life was required for the attempted offence of attempted aggravated arson under the 1971 Act, or whether recklessness was sufficient.


It was sufficient to prove D intended to damage property, and was reckless as to whether life would be endangered. The Court of Appeal followed R v Khan [1990] 2 All ER 783 which held that the mens rea for an offence and the attempted offence require identical mens rea.  The completed aggravated offence of arson does not need proof of a specific intent to endanger life, rather it requires 1) intention to damage property and 2) recklessness as to whether the conduct endangered another’s life. D having both parts of this mens rea could therefore be convicted of attempted aggravated arson with the application of Khan.